Carole Durbin of Simpson Grierson outlines varying approaches to mediation and how they suit particular disputes

Mediation has proved an extremely effective way of solving disputes quickly and cost-effectively. But there is not just one style of mediation. Mediators practise several different styles. Before choosing a mediator, you need to be aware of these different kinds of mediation, and you need to ask your prospective mediator how they approach mediation.

The best way to find out who will be a good mediator for your dispute is to get some names through a practitioner in the area, LEADR, or the Arbitrators and Mediators Institute of New Zealand ("AMINZ"). You should then contact those people and ask for referees, who you can contact to check the mediator's effectiveness and style. Whether mediation has a constructive outcome or not depends largely on the skill and approach of the mediator. Too often, not enough homework is done on this before a selection is made.

Types of mediation

1. LEADR model
This model, or close variants of it, is probably the most common in New Zealand. LEADR is an organisation that promotes mediation and provides training for mediators and lawyers. It is non-evaluative, meaning that while the mediator will generally control the process adopted by the parties in their dispute, the mediator will not tell the parties what the right outcome should be. The parties are left in control of the substance of the dispute. The mediator's role is to adopt techniques that bring the parties, wherever possible, to an agreed outcome to resolve the dispute. The mediator will ask for opening statements, and will then explore the issues with the parties before working on options for resolution.

2. Evaluative model
An evaluative model involves the mediator assisting the parties, not only by facilitating the discussions, but also by expressing their own view as to the appropriate solution, the legal position, or the technical position. In this model, the mediator guides the parties by giving his or her views on the merits of some aspects of, or the entire, dispute. Many mediators do not feel comfortable with the evaluative model because it involves influencing the outcome by giving advice in circumstances where the mediator is not likely to have adequate or accurate information on the detail of the dispute. But, for some disputes, the parties find the mediator's input valuable.

3. Transformative model
The transformative model focuses on the interaction between the parties. The mediator supports the parties as they come to understand their own, and the other party's, positions better. This approach moves the conflict from a destructive cycle to a more constructive one. The parties control the process and the outcome. The mediator does not impose or direct, but is there in a truly facilitative role. While transformative mediation will often lead to settlement, that is not necessarily a measure of its success. The point is that the parties improve their ability to solve their disputes with the other party in the mediation, and in future situations.

4. Mediator/Arbitrator or Arbitrator/Mediator
These are unsatisfactory models for resolving disputes and are not used often. The same person acts as a mediator and then, if the parties are unable to agree a settlement, as an arbitrator, to make a decision for the parties. The decision is legally binding on the parties. The only difference between the two models is the order in which the roles are carried out. The first is more common, that is, after the mediation has failed, the mediator turns into an arbitrator. The second is very unusual. The mediator makes a decision as arbitrator based on the paperwork before the mediation starts, but the decision becomes binding only if the mediation does not result in an agreed settlement. While this means the mediator is not affected by what the parties may say collectively or individually during the mediation, it also means that important information emerging during the mediation is completely ignored in the mediator's award. The problem with the first option is that a binding ruling (with which one party may violently disagree) is being imposed without hearing all the relevant facts. The decision is often made after having met separately with the parties, without the other party knowing what is said, and after hearing statements made in an effort to settle that may not at all reflect the legal position of the parties.

These mediation models differ in the degree to which the parties remain in control of their own destiny. If you really want a third party to make a decision for you on the limited information that is available in a mediation (which might be quite inaccurate and/or misleading), the evaluative model is probably for you. Many mediators feel uncomfortable with this model but there is no denying that it is very effective for small commercial/contractual/construction disputes where having a resolution and being able to move forward is more important than what the resolution is.

If you want the process but not the content or outcome to be controlled, the LEADR model will be suitable - it is focused on getting a settlement. It is often very effective. It generally requires the parties to be legally represented within the mediation because the mediator is imposing the process, and the parties will need experienced advice on what tactics and strategy to employ for the particular process adopted.

If your aim is to enhance the prospects of success in resolving the dispute by changing the dynamics of the way the parties interact into something more constructive, the transformative model is one that leaves the parties in complete control while helping them channel their conflict constructively.

When choosing a mediator, check the approach that prospective mediators take. Also ask about availability, fees, and conflicts of interest.

This is a general summary only and should not be taken as a substitute for specific advice.

Carole Durbin is a partner in the Auckland office of Simpson Grierson. She is a member of LEADR NZ Board, a fellow of the Arbitrators and Mediators Institute of New Zealand and a practising mediator.

Web site: Simpson Grierson
Email: carole.durbin@simpsongrierson.com

March 2001